Summary

In what is a watershed moment for internet defamation law in Australia,1 the Supreme Court of South Australia has found that Google Inc is a publisher of, and therefore potentially liable for, defamatory content published in search result "snippets", auto-complete suggestions and even third party websites to which it provides hyperlinked search results.

In this eBulletin, we review the decision and look at what it may mean for the internet as we know it.

The facts: Duffy v Google

Between August 2005 and December 2007, Dr Janice Duffy, paid for a number of consultations with psychics via the website "Kasamba". She was given predictions about her future and became disillusioned when those predictions did not come true. In response, she directly complained to a number of the psychics she had paid for the readings and also posted reports on the website "Ripoff Report" (a site enabling consumers to post complaints about suppliers), using various aliases, expressing her dissatisfaction with the relevant psychics.

Between December 2007 and January 2009, some of the psychics responded by publishing articles concerning Dr Duffy on the Ripoff Report, essentially accusing Dr Duffy of being someone who stalks and harasses psychics.

When Dr Duffy became aware that Google searches for her name displayed extracts from and hyperlinks to the Ripoff Report material about her, she contacted Google and demanded that the offending search results be removed. Later, Dr Duffy became aware that when her name was entered into the Google search field, the autocomplete suggestion “Janice Duffy Pyschic Stalker” was displayed. She wrote again to Google demanding removal of such words.

When Google failed to adequately respond, Dr Duffy commenced proceedings in the Supreme Court of South Australia, which Google sought to defend on a number of bases, including that the automated operation of their search algorithms to display the material complained of did not amount to "publication".

Publication

After examining decisions on online publication from a number of jurisdictions, including Australia, New Zealand, the UK, Canada and Hong Kong, Justice Blue found that the mere fact the paragraphs were generated automatically by Google’s algorithms did not prevent Google being a publisher of them after it had been notified by Dr Duffy that she considered them defamatory. Specifically, his Honour found that if Google personnel were made aware of the existence of the defamatory website "snippets" generated by Google’s own software programs and failed to remove them, their continuing existence thereafter was the direct result of human action or inaction rather than merely the result of machine operation.2 The same analysis applied in respect of the autocomplete suggestions.

Additionally, in an even more significant finding, Justice Blue held that as the Google website is programmed to automatically cause the user's web browser to display third party webpages by clicking on the relevant hyperlinked search result, Google was also a secondary publisher of that webpage (if it failed to remove the hyperlink after reasonable notice by the person alleged to be defamed by it).

In reaching this conclusion, the Court held that if a search of Dr Duffy’s name had merely returned the URL of the relevant webpage without functioning as a hyperlink and without any accompanying text, it could not be said that Google was a publisher of the content of that material.3 This is because the user would need to enter the URL into the address box of the internet browser, thereby eliminating Google's direct involvement in publication of the webpage to which the user would be directed.

What this means for Google (and the internet)

Since its creation, the internet has rapidly become not only the repository of the world's collective knowledge, but also the first port of call for anyone seeking information. In turn, internet search engines, and in particular Google, have become the gatekeepers.

Google's mission statement is "to organise the world's information and make it universally accessible and useful". By making the world's information universally accessible however, Google has also given significant exposure to opinions, gossip, and conspiracy theories that would otherwise have been unlikely to be heard beyond the small groups of individuals who initiate them.

In order to return meaningful search results, Google applies its proprietary algorithm to determine the relevance of each web page to the searched for term. Although this process operates automatically, Google is also able to manually tag certain websites in order to remove or censor them from displaying in response to particular search queries. Other than in respect of websites considered to be truly morally objectionable, Google has generally been loath to sensor its results in this manner. That may now, however, be about to change.

Censoring the internet

The judgment in Duffy is a watershed moment not just for what it means to media lawyers, but also for what it could mean for access to information in Australia more generally.

Ms Duffy could at any time have taken action for defamation in Australia against the authors of the comments she found objectionable, or against the hosts and administrators of the web sites upon which they were published.

For a number of valid reasons however, she chose to instead sue Google. While Google has previously had varying degrees of success resisting such claims internationally, the message from the Australian courts now seems clear - once you are on notice that the content is defamatory, remove it or face the consequences.

The practical consequences of this directive could be enormous. In effect, the decision means that upon being notified that a particular website is considered to be defamatory, a search engine provider which fails to remove the website from its search results within one month, may be held separately liable for defamation every time someone clicks on a link to that material from the search results.

Google is therefore placed in the invidious position of having to either censor and hide the relevant webpage, or make its own legal assessment of whether the allegedly defamatory material is true or otherwise protected by other defences under Australian defamation law. Given Google's uniquely powerful role as the gatekeeper of the internet, the decision in Duffy could, in practical terms, result in Google, rather that the courts, becoming the entity tasked with assessing and determining the vast majority of defamation claims by Australian plaintiffs against international websites.

Given the potential $376,500 in general damages that could be awarded against it for each such claim, Google could hardly be criticized if it were to take the conservative approach of blocking search results for each and every website about which a complaint is received.

Dr Duffy's claim is scheduled to return to Court for argument about a number of remaining issues, including damages. Whilst the judgment in that regard will offer further insight into the true impact of the decision, the importance of the findings that have already been made cannot be understated.

Where to from here?

Whilst Google's primary defence focussed upon the question of whether or not it was a "publisher" of search results and third party websites, Google somewhat boldly also argued for the adoption of what would have been an entirely new category of qualified privilege for search engine operators. The basis of the defence, it suggested, lay in the public interest in efficient access to and availability of online information in response to user search queries. Unsurprisingly, the Supreme Court of South Australia was unwilling to so dramatically extend the common law, or expand the interpretation of section 28 of the Defamation Act.

Given the impact of the decision, however, and its potential for abuse by plaintiffs looking to silence what may be legitimate and justified online criticism and commentary, it is not unthinkable that something akin to Google's proposed new defence may yet see the light of day, whether through appeal to the nation's higher courts, or legislative intervention.

Just as banks and insurers may have argued they are too big to fail, the question the courts and parliament must now ask is whether censorship of the internet and the consequent "chilling effect" of freedom of speech is not also too important to be left to Google.